Copyright (c) 2007 Hofstra Law Review Association
Hofstra Law Review
IDEA: THE FIVE ELEMENTS OF NEGLIGENCE
35 Hofstra L. Rev. 1671
David G. Owen*
After centuries of glacial development in the English forms of action, negligence law in America began to take shape during the 1830s and 1840s as a general theory of liability for carelessly caused harm. Conveniently (if roughly) dated to Chief Judge Shaw's 1850 decision in Brown v. Kendall, 1 negligence emerged as a distinct tort sometime during the middle of the nineteenth century. 2 The essence of the tort was that a person should be subject to liability for carelessly causing harm to another. 3 Also essential to negligence, evident from an early date, was the necessity of a causal connection between the defendant's breach of duty and the plaintiff's damage that was natural, probable, proximate, and not too remote. 4
As early courts and commentators explored the developing tort of negligence, they increasingly divided it into its essential pieces - "elements" - centered on a defendant's failure to exercise due care and the plaintiff's proximately resulting harm. 5 As negligence law proceeded to evolve, its elements were stated in a variety of ways, but most courts 6 and commentators 7 in time came to assert that it contains four elements. In perhaps its most conventional current iteration, negligence is formulated in terms of duty, breach, cause, and damage. 8 Yet, courts and commentators continue to disagree on what the four elements should contain, on just how the various ideas recognized as essential to negligence claims should be stuffed into the four pigeonholes. 9 Many courts frame the ...
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